dismissed L-1A Case: Export Of Building Materials

U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC-03-030-5449 1 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
c- 
~Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC-03-030-5449 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnrnigrant petition seeking to extend the employment of its General Manager for 
Exports as an L-1A nonirnrnigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. Q 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that is engaged in the export of building materials. The petitioner claims 
that it is the parent of Interczech, SRO, located in Brno, Czech Republic. The beneficiary was initially 
granted a three-year period in L-1A status and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that "[tlhe decision 
of the Director is erroneous in that it fails to follow the appropriate law." In support of this assertion, counsel 
submits a brief statement on Form I-290B. While counsel indicated on Form I-290B he would be submitting 
a brief andlor additional evidence within 30 days of filing the appeal, as of the date of this decision, the AAO 
has received no further documentation or correspondence from counsel or the petitioner. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
WAC-03-030-5449 1 
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education, training, and employment qualifies hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section IOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated October 16, 2002 submitted with the initial petition, the petitioner described the beneficiary's 
job duties as follows: 
WAC-03-030-5449 1 
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[The beneficiary will] manage the export of building materials and components. . . . He will 
continue to evaluate and acquire new U.S. products for exportation in Eastern Europe. He is 
currently supervising a technical staff of three people in our office in the U.S. and six 
technical people in our facility in Czech Republic. He is also currently training new staff in 
both the U.S. and the [foreign entity] for the management position which he now holds. 
On February 27, 2003, the director requested additional evidence. In part, the director requested: (1) an 
organizational chart for the petitioner, including the names of all executives, managers, and supervisors, and 
the number of employees in each department; (2) a list of all of the petitioner's employees from the date of 
establishment to the present, including names, job titles, social security numbers, beginning and ending dates 
of employment, and wages per week; (3) the names and titles of all subordinates under the beneficiary, 
including a brief description of their job duties, educational level, annual salaries, and immigration status; (4) 
an explanation of the source of remuneration of all employees, including an indication of whether they are 
paid by salary, wage, or commission; (5) a detailed description of the beneficiary's duties, including the 
percentage of time spent on each duty, the education and employment experience required, and evidence that 
the beneficiary meets the requirements for the position; and (6) California Forms DE-6, Quarterly Wage 
Report, for the prior three quarters, including the names, social security numbers, and number of weeks 
worked for all employees. 
In a response dated May 20, 2003, the petitioner submitted: (1) an organizational chart for the petitioner; (2) a 
statement describing the education, immigration status, compensation, and duties of each of the petitioner's 
employees; (3) Forms W-2 and payroll records for the petitioner's employees from 1993 to 2003, including 
quarterly payroll data from California Forms DE-6 for all quarters of 2002; (4) California Form DE-6, 
Quarterly Wage Report, for the first quarter of 2003; and (5) a statement further describing the duties of the 
beneficiary. In the statement, the petitioner provides the following: 
[The beneficiary] is responsible for the operation of [the petitioner] and also oversees the 
operations of the foreign subsidiary. The minimum education and employment qualifications 
for the position of the [petitioner] are those which [the beneficiary] acquired in the Czech 
Republic serving as General Manager for [the foreign entity] for nearly six years prior to 
assuming his managerial duties for [the petitioner]. The Educational requirement is a 
Bachelor's Degree or equivalent in Mechanical Engineering in order to be knowledgeable and 
familiar with the U.S. building products and components for purchase and shipment to our 
Czech Company. Furthermore, our U.S. manager must be knowledgeable of the foreign 
requirements for conversion of mechanical specifications, which now have become more 
complicated with the inclusion of the Czech Republic in the European Union. He obviously 
must also possess business administration experience in his managerial position in our 
company. He has demonstrated that experience, acquired while employed by our foreign 
subsidiary as General Manager. [The beneficiary] does have the ability to speak, read and 
write English. He deals with U.S. companies in sourcing and acquiring mechanical 
equipment and products for shipments to Europe on a daily basis. 
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On June 19, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated that "[tlhere is no indication that the beneficiary will exercise 
significant authority over generalized policy or that the beneficiary's duties will be primarily managerial or 
executive in nature." 
On appeal, counsel for the petitioner asserts that "[tlhe decision of the Director is erroneous in that it fails to 
follow the appropriate law." In a brief statement on Form I-290B, counsel quotes previously submitted 
descriptions of the beneficiary's duties. Counsel further states that: 
[The beneficiary] was previously employed in the [foreign entity] as General Manager. He is 
responsible for the conduct and direction of all the employees of [the petitioner], two of 
whom have masters degrees and one a bachelor of Science in Mechanical Engineering. 
Although not set forth in the petition and request for information, it is implicit that [the 
beneficiary] has the capacity . . . to hire and fire employees. . . . The appropriate law 
regarding this matters [sic] has not been changed or amended since the date that [the 
beneficiary] was first approved as LlA intercompany [sic] transferee on December 8, 1999. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
2142()(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial - 
capacity. Id. 
In the instant matter, the beneficiary's job description submitted by the petitioner was vague, providing little 
insight into the true nature of the tasks the beneficiary will perform in the United States. For example, the 
statement that the beneficiary will "manage the export of building materials and components" does not 
indicate how the beneficiary will accomplish this task and what associated day-to-day duties he will perform. 
Further, the petitioner stated that the beneficiary "deals with U.S. companies in sourcing and acquiring 
mechanical equipment and products for shipments to Europe on a daily basis." Yet, the record does not 
reflect whether he will communicate with companies himself, or whether he will direct others to do so. The 
record does not answer whether he will personally perform the non-managerial task of placing orders for 
mechanical equipment and products, or whether his subordinate staff will do so. As requested by the director, 
the petitioner discussed the beneficiary's education and work experience. Though relevant, this information 
alone does not reveal what actual duties the beneficiary will perform. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Snvn, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. The provided job description does not allow the AAO to determine the actual 
tasks that the beneficiary will perform, such that they can be classified as managerial or executive in nature. 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
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administrative or operational duties. Although specifically requested by the director, the petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature, and what proportion is actually non-managerial. See Republic of Trarzskei v. INS, 923 
F.2d 175, 177 (D.C. Cir. 1991). Thus, the AAO cannot determine whether the beneficiary will be primarily 
engaged in managerial duties as defined by section 101(a)(44)(A) of the Act. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 3 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sen, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, though the petitioner's employees purportedly have college level degrees, 
the petitioner has not established that bachelor's degrees are actually necessary to perform the duties of their 
respective positions. For example, the petitioner provides that the employee "[rlesponsible for freight 
forwarding and shipping" possesses a master of business administration degree, yet the short phrase to 
describe his duties does not show that an MBA is actually required for his position. The petitioner provides 
that the employee "[rlesponsible for sourcing and exportation of gate and garage door openers and all security 
features on garage doors" possesses a bachelor of science degree in mechanical engineering, yet the 
description of his duties does not show that advanced training in mechanical engineering is actually required 
for his duties. The petitioner provides that the employee "[r]esponsible for office management [and the] 
preparation of accounting data" possesses an master of science degree in education, yet it is self-evident that 
training in education is not required for these tasks. Thus, the petitioner has not established that the 
beneficiary's subordinates are professionals as contemplated by section lOl(a)(44)(A)(ii) of the Act. 
The organizational chart submitted by the petitioner reflects that none of the beneficiary's subordinates have 
subordinates of their own, thus they are not supervisory employees. Accordingly, the petitioner has not 
established that the beneficiary manages supervisory employees as contemplated by section 101(a)(44)(A)(ii) 
of the Act. 
The beneficiary's subordinates possess managerial titles, such as "Shipping manager," "Manager," and "Office 
manager." Yet, the petitioner has not provided sufficiently detailed job descriptions such that the AAO can 
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determine if these employees actually possess managerial responsibilities. Thus, the petitioner has not 
established that the beneficiary's subordinates are managerial employees as contemplated by section 
101(a)(44)(A)(ii) of the Act. 
The petitioner indicated that the beneficiary supervises a manufacturing manager at the foreign entity in the 
Czech Republic, who in turn supervises a staff of eight workers in garage door manufacturing. However, the 
petitioner has not provided sufficient documentation to support that these workers are indeed employed by the 
foreign entity. Such documentation would include payroll records, detailed job descriptions, or 
documentation of projects these workers are engaged upon. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). *, i 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). For this reason, the appeal will be 
dismissed. 
In the appeal, counsel stated that "[tlhe appropriate law regarding this matters [sic] has not been changed or 
amended since the date that [the beneficiary] was first approved as L1A intercompany [sic] transferee on 
December 8, 1999." The AAO notes that the CIS California Service Center previously approved a prior 
petition filed by the petitioner on behalf of the beneficiary. Yet, prior approvals do not preclude CIS from 
denying an extension of the original visa based on reassessment of petitioner's qualifications. Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.